May 9th, 2016 | Sterling

Employee Privacy and Social Media Background Checks: Where do you draw the line?

In the age of ubiquitous social media, employers and employees alike seek to develop their brand through social media channels. Online profiles and activity can paint a fascinating—if not always entirely accurate—picture of a person: they can give insight into activities and interests, they can expose harassing or discriminatory behaviour, and they can help expose dishonesty. But social media browsing can create challenges for employers, as it can be hard to draw the line between an employee’s personal and work life online. To make matters more complicated, there is not yet a social consensus on which aspects of social media life, if any, are off limits to employers. Fortunately, through clear policies and a bit of discipline, employers can mitigate some of the risks generated by social media background checks.

What are the risks?

A number of risks may arise in reviewing applicant or employee social media information. Some of those risks include:

• Human rights violations: Before selecting an applicant, employers must be careful to avoid exposure to information that could lead to a human rights violation. Each jurisdiction has its own human rights law, but protected categories are similar: race, religion, ethnic origin, age and other similar types of characteristics are protected. As many people use social media platforms as a repository for a great deal of biographical information, a prospective employer may inadvertently expose itself—and be influenced by—protected information, leading to a human rights violation.

• Privacy concerns: In jurisdictions where a privacy law protects employee or applicant information, social media reviews must be conducted in accordance with those laws.

• Notice must be given and, in some cases, consent must be obtained before reviewing personal information. Social media information may not be publicly available, and even if it is, you may still be required to give notice of your intent to collect it.

• You must justify the necessity of any personal information you collect, and even if some social media information is reasonably necessary for the purpose of employee screening or monitoring, it is almost inevitable that you will come across other personal information that is not.

• You are obligated to ensure personal information you collect and use is sufficiently accurate for the purpose. Social media information is often inaccurate or difficult to validate.

• By its very nature, social media contains information about many people. While collecting your employee or applicant’s personal information, you could find yourself collecting third parties’ personal information as well, without notice, consent or a valid purpose for doing so.

• In some cases, information used to make a decision about a person is subject to record keeping requirements. Are you really printing out every page you see?

• Employee trust and expression: Employees don’t like to be spied on, or to feel that their personal expression outside of work may be excessively stifled by their employer.

How can employers mitigate these risks?

These steps, as well as consultation with a local labour lawyer, can go a long way towards reducing the risks of harming employee morale or engaging in privacy or human rights violations.

1. Determine why you want to review social media and what types of information you want to see. Setting clear boundaries for what you will be reviewing will set your employees at ease and demonstrate that you are not just sweeping up personal information indiscriminately. If you can’t clearly justify it, you shouldn’t collect it—and “we’re curious” is not a justification!

2. Engage a third-party screening partner to conduct checks according to your requirements. If the decision maker is left to review social media information, it is almost inevitable that he or she will be exposed to excessive personal information. Bringing in an outside expert to review social media will ensure you don’t collect too much and will have clear records of what you reviewed in making your decision.

3. Never ask employees to connect to you on social media or provide login credentials. These practices are strongly discouraged by lawyers and regulatory bodies in Canada, and in many U.S. states they have been explicitly banned.

4. Discuss negative findings with your applicant or employee to allow them to explain or contest their accuracy. It hurts both parties to make a decision based on bad information, and social media is notoriously full of inaccuracies and mistaken identities.

5. Conduct social media reviews at predetermined points, not indiscriminately. You may decide that you want to review social media during the pre-employment background screening process, at set intervals during employment, or when there is evidence that inappropriate activity is taking place, rather than browsing at random.

6. Notify your applicants and employees of your practices and obtain their written consent to review social media where it is required by law. This will help keep you in line with privacy law and avoid surprising employees who did not know their social media activity was being reviewed.

This publication is for informational purposes only and nothing contained in it should be construed as legal advice. We expressly disclaim any warranty or responsibility for damages arising out this information. We encourage you to consult with legal counsel regarding your specific needs. We do not undertake any duty to update previously posted materials.